SECURITY AGREEMENT
Exhibit 10.22
This SECURITY AGREEMENT (as the same may from time to time be amended, restated
or otherwise modified, this “Agreement”) is made as of the 31st day of
August, 2006, by DATATRAK INTERNATIONAL, INC., an Ohio corporation (“Borrower”), in
favor of KEYBANK NATIONAL ASSOCIATION (“Lender”).
Concurrently herewith Lender is establishing a Line of Credit, as hereinafter
defined, pursuant to which Borrower may from time to time request loans, as
hereinafter defined. Borrower desires that Lender grant the financial accommodations
to Borrower pursuant to the Line of Credit. Borrower deems it to be in the direct
pecuniary and business interests of Borrower that Borrower obtain from Lender the
financial accommodations provided for under the Line of Credit.
Borrower understands that Lender is willing to grant the financial accommodations
provided for under the Line of Credit only upon certain terms and conditions, one of
which is that Borrower grant to Lender a security interest in and a collateral
assignment of the Collateral, as hereinafter defined, and this Agreement is being
executed and delivered in consideration of each financial accommodation, if any,
granted to Borrower by Lender and for other valuable consideration.
“Account” shall mean all of Borrower’s accounts, as defined in the U.C.C.
“Account Debtor” shall mean any Person obligated to pay all or any part of any
Account in any manner and includes (without limitation) any guarantor thereof or other
accommodation party therefor.
“Advances” means, collectively, all loan advances made by Lender to Borrower, at
the sole discretion and option of Lender, Borrower acknowledging that the Line of
Credit relating to this Note is purely discretionary and Lender may, without prior
notice to Borrower, refuse to honor any request by Borrower for borrowing hereunder;
“Advance” means any of the Advances.
“Cash Collateral Account” shall mean a commercial Deposit Account (if any)
designated “cash collateral account” and maintained by Borrower with Lender, without
liability by Lender to pay interest thereon, from which account Lender shall have the
exclusive right to withdraw funds until all of the Obligations are paid in full.
“Cash Security” shall mean all cash, instruments, Deposit Accounts, and other cash
equivalents, whether matured or unmatured, whether collected or in the process of
collection, upon which Borrower presently has or may hereafter have any claim, wherever
located (including but not limited to any of the foregoing that are presently or may
hereafter be existing or maintained with, issued by, drawn upon, or in the possession
of Lender).
“Collateral” shall mean all of Borrower’s existing and future (a) Accounts, (b)
instruments, chattel paper and documents relating to Accounts, (c) letter-of-credit
rights supporting Accounts, (d) general intangibles relating to Accounts, (e) funds now
or hereafter on deposit in the Cash Collateral Account, if any, Cash Security, and (f)
Proceeds of any of the foregoing.
“Default Rate” means that floating rate per annum equal to two percent (2%) in
excess of the Prime Rate from time to time in effect, which rate shall be immediately
adjusted to correspond with each change in the Prime Rate.
“Deposit Account” shall mean (a) a deposit account, as defined in the U.C.C., (b)
any other deposit account, and (c) any demand, time, checking, savings, passbook or
similar account maintained with a bank, savings and loan association, credit union, or
similar organization, in each case into which proceeds of Collateral are deposited.
“Event of Default” shall mean an event or condition that constitutes an Event of
Default, as defined in Section 13.1 hereof.
“Hedge Agreement” shall mean any currency swap or hedge agreement, interest rate
swap, cap, collar or floor agreement, or other interest rate management device entered
into by Borrower with Lender.
“Line of Credit” shall mean the discretionary line of credit established by Lender
for Borrower concurrently herewith, as such line of credit may from time to time be
renewed, extended or increased, pursuant to which Borrower may request such Loans as
Lender may be willing to grant.
“Loan” shall mean any Advance, as defined in the Note.
“Note” shall mean that certain Demand Master Promissory Note executed by Borrower
evidencing Borrower’s obligations to repay the Loans, as such note may from time to
time be amended, restated or otherwise modified or replaced, and any replacement or
other promissory note executed in connection with the Line of Credit.
“Obligations” shall mean, collectively, (a) all Advances, indebtedness and other
obligations now owing or hereafter incurred by Borrower to Lender pursuant to the Line
of Credit and the Note executed in connection therewith; (b) each renewal, extension,
consolidation or refinancing of any of the foregoing, in whole or in part; (c) all
interest from time to time accruing on any of the foregoing, and all fees and other
amounts payable to Lender pursuant to the Line of Credit or the Note; (d) all
obligations and liabilities of Borrower now existing or
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hereafter incurred to Lender (or any affiliate of Lender) under, arising out of, or in
connection with any Hedge Agreement; (e) every other liability, now or hereafter owing
to Lender (or any affiliate of Lender) by Borrower or Borrower, and includes, without
limitation, every liability, whether owing by only Borrower or Borrower or by Borrower
or Borrower with one or more others in a several, joint or joint and several capacity,
whether owing absolutely or contingently, whether created by note, overdraft, guaranty
of payment or other contract or by quasi-contract, tort, statute or other operation of
law, whether incurred directly to Lender (or any affiliate thereof) or acquired by
Lender (or any affiliate thereof) by purchase, pledge or otherwise and whether
participated to or from Lender (or any affiliate thereof) in whole or in part; and (f)
all Related Expenses.
“Prime Rate” means that interest rate established from time to time by Lender as
Lender’s Prime Rate, whether or not such rate is publicly announced; the Prime Rate
may not be the lowest interest rate charged by Lender for commercial or other
extensions of credit. Each change in the Prime Rate shall be effective immediately
from and after such change.
“Proceeds” shall mean (a) proceeds, as defined in the U.C.C. and (b) whatever is
received upon the sale, exchange, collection or other disposition of Collateral or
proceeds, whether cash or non-cash. Cash proceeds include, without limitation, moneys,
checks, and Deposit Accounts. Proceeds include, without limitation, any Account
arising when the right to payment is earned under a contract right, any insurance
payable by reason of loss or damage to the Collateral, and any return or unearned
premium upon any cancellation of insurance. Except as expressly authorized in this
Agreement or the Note, the right of Lender to Proceeds specifically set forth herein,
or indicated in any financing statement, shall never constitute an express or implied
authorization on the part of Lender to Borrower’s sale, exchange, collection, or other
disposition of any or all of the Collateral.
“Related Expenses” shall mean any and all costs, liabilities and expenses
(including, without limitation, losses, damages, penalties, claims, actions, reasonable
attorneys’ fees, legal expenses, judgments, suits and disbursements) (a) incurred by
Lender or imposed upon or asserted against Lender, in any attempt by Lender to (i)
obtain, preserve, perfect or enforce any security interest evidenced by this Agreement
or the Note; (ii) obtain payment, performance or observance of any and all of the
Obligations; or (iii) maintain, insure, audit, collect, preserve, repossess or dispose
of any of the Collateral or any other collateral securing the Obligations, including,
without limitation, costs and expenses for appraisals, assessments and audits of
Borrower or any such collateral; or (b) incidental or related to (a) above, including,
without limitation, interest thereupon, which shall bear interest until paid at the
Default Rate, commencing ten days after an invoice has been provided to Borrower.
“U.C.C.” shall mean the Uniform Commercial Code, as in effect from time to time
in Ohio.
“U.C.C. Financing Statement” shall mean a financing statement filed or to be
filed in accordance with the Uniform Commercial Code, as in effect from time to time
in the relevant state or states.
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4.1. Borrower is a corporation duly organized, validly existing and in good standing
under the laws of its state of incorporation and is duly qualified to do business in each
state in which a failure to so qualify would have a material adverse effect on Borrower.
4.2. Borrower has full power, authority and legal right to pledge the Collateral, to
execute and deliver this Agreement, and to perform and observe the provisions hereof. The
officers acting on Borrower’s behalf have been duly authorized to execute and deliver this
Agreement. This Agreement is valid and binding upon Borrower in accordance with the terms
hereof, subject to applicable bankruptcy, insolvency, avoidance, bulk transfer,
reorganization, moratorium or similar laws affecting the rights of creditors, the Lender
generally, including any statutory or other laws regarding fraudulent conveyances or
transfers and preferential transfers or bulk transfers and general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
4.3. Neither the execution and delivery of this Agreement, nor the performance and
observance of the provisions hereof, by Borrower will conflict with, or constitute a
violation or default under, any provision of any applicable law or of any contract
(including, without limitation, Borrower’s articles of incorporation and bylaws or of any
other writing binding upon Borrower in any manner which conflict would reasonably be
expected to have a material adverse effect on Borrower.
4.4. Borrower is organized solely under the laws of the State of Ohio and has not
continued existence from any other jurisdiction. Borrower has not changed its name during
the last five years and has not conducted business under a trade or assumed name.
Borrower’s chief executive office is set forth on Schedule 4.4 hereto. Borrower
has places of business or maintains Collateral and its other assets at the locations set
forth on Schedule 4.4 hereto.
4.5. Borrower has furnished its most recent financial statements to Lender and such
financial statements are true and complete in all material respects, have been prepared in
accordance with generally accepted accounting principles, in a manner consistent with that
used for the immediately preceding fiscal period, and fairly present Borrower’s financial
condition as of the date of such financial statements and the results of Borrower’s
operations for the period then ending. Since such date, there has been no material adverse
change in Borrower’s financial condition, business and properties other than such changes,
if any, as have been specifically disclosed to Lender in writing.
4.6. At the execution and delivery hereof, (a) there is no U.C.C. Financing Statement
outstanding covering the Collateral, or any part thereof, or any inventory of Borrower;
(b) none of the Collateral or inventory of Borrower is subject to any security interest or
lien of any kind;
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(c) the Internal Revenue Service has not alleged the nonpayment or underpayment of any
tax by Borrower or threatened in writing to make any assessment in respect thereof;
(d) upon execution of this Agreement and the filing of the U.C.C. Financing Statements
in connection herewith, Lender will have a valid and enforceable first security
interest in the Collateral (to the extent perfection can be accomplished by such
filing or action) that is the type in which a security interest may be created under
the U.C.C. by the execution of a security agreement and perfected by the filing of a
U.C.C. Financing Statement; and (e) Borrower has not entered into any contract or
agreement that would prohibit Lender from acquiring a security interest, mortgage or
other lien on, or a collateral assignment of, any of the property or assets of
Borrower.
4.7. Borrower has received consideration that is the reasonably equivalent value of
the obligations and liabilities that Borrower has incurred to Lender. Borrower is not
insolvent, as defined in any applicable state or federal statute, nor will Borrower be
rendered insolvent by the execution and delivery of this Agreement to Lender or any other
documents executed and delivered to Lender in connection herewith. Borrower has not
engaged, nor is Borrower about to engage, in any business or transaction for which the
assets retained by it are or will be an unreasonably small amount of capital, taking into
consideration the obligations to Lender incurred hereunder. Borrower does not intend to,
nor does it believe that it will, incur debts beyond its ability to pay such debts as they
mature.
4.8. At the execution and delivery hereof, no Event of Default will exist.
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promptly reimburse Lender therefor if Lender pays the same. Such amounts not so paid or
reimbursed shall be Related Expenses hereunder.
9. Transfers, Liens and Modifications Regarding Collateral. Borrower shall
not, without Lender’s prior written consent, (a) sell, assign, transfer or otherwise
dispose of, or grant any option with respect to, or create, incur, or permit to exist any
pledge, lien, mortgage, hypothecation, security interest, charge, option or any other
encumbrance with respect to any of the Collateral, or any interest therein, or Proceeds,
except for the lien and security interest provided for by this Agreement and any security
agreement securing only Lender; or (b) enter into or assent to any amendment, compromise,
extension, release or other modification of any kind of, or substitution for, any of the
Accounts except, in each case, in the ordinary course of business of
Borrower.
(a) at all reasonable times during normal business hours and upon prior written
notice, allow Lender by or through any of its officers, agents, employees, attorneys or
accountants to (i) examine, inspect and make extracts from Borrower’s books and other
records, including, without limitation, the tax returns of Borrower, and (ii) upon and
during the continuance of an Event of Default, arrange for verification of the
Accounts, under reasonable procedures, directly with Account Debtors or by other
methods;
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(b) promptly furnish to Lender, upon request, (i) additional statements and
information with respect to the Collateral, and all writings and information relating to
or evidencing any of the Accounts (including, without limitation, computer printouts or
typewritten reports listing the mailing addresses of all present Account Debtors), and
(ii) any other writings and information as Lender may request;
(c) notify Lender in writing promptly upon the creation of any Accounts with respect
to which the Account Debtor is the United States of America or any state, county, city or
other governmental authority or any department, agency or instrumentality of any of them,
or any foreign government or instrumentality thereof;
(d) promptly notify Lender in writing of any information that Borrower has or may
receive with respect to the Collateral that would reasonably be expected to materially and
adversely affect the value thereof or the rights of Lender with respect thereto taken as a
whole;
(e) upon request of Lender, execute and deliver with a financial institution that
holds deposits in the name of Borrower, a control agreement over such Deposit Account in
favor of Lender, in form and substance satisfactory to Lender; and
(f) upon request of Lender, promptly take such action and promptly make, execute, and
deliver all such additional and further items, deeds, assurances, instruments and any
other writings as Lender may from time to time reasonably deem necessary, including,
without limitation, chattel paper, to carry into effect the intention of this Agreement or
so as to completely vest in and ensure to Lender its rights hereunder and in or to the
Collateral.
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all remittances representing Proceeds of Collateral to be mailed to a lock box at a
location acceptable to Lender, to which Lender shall have access for the processing of
such items in accordance with the provisions, terms, and conditions of Lender’s
customary lock box agreement.
(a) to receive, retain, acquire, take, endorse, assign, deliver, accept and deposit,
in Lender’s name or Borrower’s name, any and all of Borrower’s cash, instruments, chattel
paper, documents, Proceeds of Accounts, collection of Accounts, and any other writings
relating to any of the Collateral. Borrower hereby waives presentment, demand, notice of
dishonor, protest, notice of protest and any and all other similar notices with respect
thereto, regardless of the form of any endorsement thereof. Lender shall not be bound or
obligated to take any action to preserve any rights therein against prior parties thereto;
(b) to transmit to Account Debtors, on any or all of the Accounts, notice of
assignment to Lender thereof and the security interest of Lender and to request from such
Account Debtors at any time, in the name of Lender or Borrower, information concerning the
Accounts and the amounts owing thereon;
(c) to notify and require Account Debtors on the Accounts to make payment of their
indebtedness directly to Lender;
(d) to enter into or assent to such amendment, compromise, extension, release or
other modification of any kind of, or substitution for, the Accounts, or any thereof, as
Lender, in its reasonable discretion, may reasonably deem to be advisable;
(f) to enforce the Accounts or any thereof, or any other Collateral, by suit or
otherwise, to maintain any such suit or other proceeding in Lender’s own name or in
Borrower’s name, and to withdraw any such suit or other proceeding. Borrower agrees to
lend every assistance reasonably requested by Lender in respect of the foregoing, all
at no cost or expense to Lender and including, without limitation, the furnishing of
such witnesses and of such records and other writings as Lender may reasonably require
in connection with making legal proof of any Account. Borrower agrees to reimburse
Lender in full for all court costs and reasonable attorneys’ fees and every other
reasonable cost, expense or liability, if any, incurred or paid by Lender in connection
with the foregoing, which obligation of Borrower shall constitute Obligations, shall be
secured by the Collateral and shall bear interest, until paid, at the Default Rate; and
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(g) to accept all collections in any form relating to the Collateral, including
remittances that may reflect deductions, and to deposit the same, into the Cash
Collateral Account or, at the option of Lender, to apply them as a payment on the
Obligations.
13.1. Any of the following shall constitute an Event of Default under this Agreement:
(a) an Event of Default, as defined in the Note, shall occur under the Note; (b) any
representation, warranty or statement made by Borrower in or pursuant to this Agreement or
in any other writing received by Lender in connection with the Obligations shall be false
or erroneous in any material respect; or (c) Borrower shall fail or omit to perform or
observe any agreement made by Borrower in or pursuant to this Agreement or in any other
writing received by Lender pursuant hereto and such failure to continue for fifteen (15)
days after notice from Lender of such default.
13.2. Lender shall at all times have the rights and remedies of a secured party under
the U.C.C. and the Ohio Revised Code as in effect from time to time, in addition to the
rights and remedies of a secured party provided elsewhere within this Agreement or in the
Note or otherwise provided in law or equity. Upon the occurrence of an Event of Default
and at all times during the continuance thereof, Lender may require Borrower to assemble
the Collateral, which Borrower agrees to do, and make it available to Lender at a
reasonably convenient place to be designated by Lender. Lender may, with or without notice
to or demand upon Borrower and with or without the aid of legal process, make use of such
force as may be necessary to enter any premises where the Collateral, or any thereof, may
be found and to take possession thereof (including anything found in or on the Collateral
that is not specifically described in this Agreement, each of which findings shall be
considered to be an accession to and a part of the Collateral) and for that purpose may
pursue the Collateral wherever the same may be found, without liability for trespass or
damage caused thereby to Borrower. After any delivery or taking of possession of the
Collateral, or any thereof, pursuant to this Agreement, then, with or without resort to
Borrower or any other Person or property, all of which Borrower hereby waives, and upon
such terms and in such manner as Lender may deem advisable, Lender, in its discretion, may
sell, assign, transfer and deliver any of the Collateral at any time, or from time to
time. No prior notice need be given to Borrower or to any other Person in the case of any
sale of Collateral that Lender determines to be perishable or to be declining speedily in
value or that is customarily sold in any recognized market, but in any other case Lender
shall give Borrower no fewer than ten days prior notice of either the time and place of
any public sale of the Collateral or of the time after which any private sale or other
intended disposition thereof is to be made. Borrower waives advertisement of any such sale
and (except to the extent specifically required by the preceding sentence) waives notice
of any kind in respect of any such sale. At any such public sale, Lender may purchase the
Collateral, or any part thereof, free from any right of redemption, all of which rights
Borrower hereby waives and releases. After deducting all Related Expenses, and after
paying all claims, if any, secured by liens having precedence over this Agreement, Lender
may apply the net proceeds of each such sale to or toward the payment of the Obligations,
whether or not then due, in such order and by such division as Lender, in its sole
discretion, may deem advisable. Any excess, to the extent permitted by law, shall be paid
to
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Borrower, and the obligors on the Obligations shall remain liable for any deficiency.
In addition, Lender shall at all times have the right to obtain new appraisals of
Borrower or the Collateral, the cost of which shall be paid by Borrower.
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20. Governing Law; Submission to Jurisdiction, The provisions of this
Agreement and the respective rights and duties of Borrower and Lender hereunder shall
be governed by and construed in accordance with Ohio law, without regard to principles
of conflicts of laws. Borrower hereby irrevocably submits to the non-exclusive
jurisdiction of any Ohio state or federal court sitting in Cleveland, Ohio, over any
such action or proceeding arising out of or relating to this Agreement, the Note or
any other document executed in connection therewith, and Borrower hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such Ohio state or federal court. Borrower hereby irrevocably waives, to
the fullest extent permitted by law, any objection it may now or hereafter have to the
laying of venue in any action or proceeding in any such court as well as any right it
may now or hereafter have to remove such action or proceeding, once commenced, to
another court on the grounds of FORUM NON CONVENIENS or otherwise. Borrower agrees
that a final, nonappealable judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this Security
Agreement as of the date first written above.
| Address: | 0000 Xxxxxxxx Xxxxxxxxx | DATATRAK INTERNATIONAL, INC. | ||||
| Xxxxxxxx Xxxxxxx, XX 00000 | ||||||
| By: | /s/ Xxxxx X. Black | |||||
| Name: | Xxxxx X. Black | |||||
| Title: | V.P. — CFO | |||||
Signature Page to
Security Agreement
Security Agreement
SCHEDULE 4.4
Chief executive office:
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxx, Xxxx 00000
Xxxxxxxx Xxxxxxx, Xxxx 00000
Other office locations:
000 Xxxxx Xxxx Xx.
Xxxxx, XX 00000
Xxxxx, XX 00000
Xxxxxxxxx.00
00000 Xxxx
Xxxxxxx
00000 Xxxx
Xxxxxxx
DEMAND MASTER PROMISSORY NOTE
| $2,000,000 | August 31, 2006 Cleveland, Ohio |
ON DEMAND, FOR VALUE RECEIVED, the undersigned, DATATRAK INTERNATIONAL, INC., an Ohio
corporation (“Borrower”), promises to pay to the order of KEYBANK NATIONAL ASSOCIATION
(“Lender”) at its main office at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, or at such
other place as Lender shall designate, the principal sum of TWO MILLION DOLLARS
($2,000,000), or the aggregate unpaid principal amount of all Advances made by Lender
to Borrower hereunder, whichever is less, in lawful money of the United States of
America, on the earlier of DEMAND or the Facility Termination Date.
Advances may be requested hereunder as Prime Rate Advances or Eurodollar Advances
pursuant to the Line of Credit. Borrower promises to pay interest (based on a year
having three hundred sixty (360) days and calculated for the actual number of days
elapsed) on the principal balance of each Advance at a rate per annum equal to the
Interest Rate applicable to such Advance, with such interest to be due and payable (a)
with respect to any Prime Rate Advance on the last day of each calendar month
commencing September 30, 2006 and continuing on the last day of each calendar month
thereafter and on the Facility Termination Date; and (b) with respect to any
Eurodollar Advance, on the last day of the Interest Period applicable to such Advance.
The principal balance of each Advance that remains outstanding after the Facility
Termination Date shall bear interest at a rate per annum equal to the Default Rate.
Any Prime Rate Advance may be prepaid at any time. No Eurodollar Advance may be
prepaid prior to the last day of the Interest Period applicable thereto; provided that
each Advance must be paid upon the Facility Termination Date and any prepayment of a
Eurodollar Advance resulting therefrom shall be subject to the reimbursement
provisions set forth below.
This Note shall serve as a master note to evidence all Advances; provided that the
aggregate unpaid principal amount of all Advances shall not at any time outstanding
exceed the Maximum Amount. Borrower shall make a prompt prepayment on this Note in the
event that the aggregate unpaid principal amount of all Advances shall at any time
exceed the Maximum Amount and such prepayment shall be subject to the reimbursement
provisions set forth below. Lender shall record (a) the principal amount of each
Advance, the Interest Period, if any, and the Interest Rate applicable thereto, and (b)
the amount of any principal, interest or other payment and the applicable dates with
respect thereto, by such method as Lender may generally employ; provided that failure
to make any such entry shall in no way detract from Borrower’s obligations under this
Note. The foregoing information with respect to the Advances set forth on the records
of Lender shall be rebuttably presumptive evidence of the principal and interest owing
and unpaid on this Note.
Borrower shall provide notice to Lender of a requested Eurodollar Advance no fewer
than three Business Days (before 11:00 A.M. Eastern time) prior to the proposed date
of borrowing.
Borrower may only borrow Eurodollar Advances on the first day and the fifteenth day of
each calendar month. Borrower may request same day borrowings with respect to Prime
Rate Advances provided that the request for such Advance is made before 3:00 P.M.
(Eastern time). Whenever any payment to be made under this Note shall be due on a day
that is not a Business Day, such payment shall be made on the next succeeding Business
Day, and such extension of time shall in each case be included in the computation of
the interest payable hereunder; provided, however, that, with respect to any Eurodollar
Advance, if the next succeeding Business Day falls in the succeeding calendar month,
such payment shall be made on the preceding Business Day and the relevant Interest
Period shall be adjusted accordingly. Borrower shall not request any Advance if any
Event of Default shall have occurred or if an event has occurred, which with the giving
of notice or the lapse of time, or both, would constitute an Event of Default. Borrower
waives presentment, demand, notice, protest and all other demands and notices in
connection with delivery, acceptance, performance, default or enforcement of this Note.
If any Eurodollar Advance becomes due and payable or is prepaid prior to the Facility
Termination Date applicable thereto, Borrower also promises to reimburse Lender on
demand for any resulting loss, cost or expense incurred by Lender as a result thereof,
including, without limitation, any loss incurred in obtaining, liquidating or employing
deposits from third parties (including loss of margin for the period after any such
payment). If, because of the introduction of or any change in, or because of any
judicial, administrative or other governmental interpretation of any law or regulation,
there shall be any increase in the cost to Lender of making, funding, maintaining or
allocating capital to any Eurodollar Advance, then Borrower shall, from time to time
upon demand by Lender, pay to Lender additional amounts sufficient to compensate Lender
for such increased cost until such Eurodollar Advance is converted to a Prime Rate
Advance. If, because of the introduction of or any change in, or because of any
judicial, administrative or other governmental interpretation of, any law or
regulation, it becomes unlawful for Lender to make, fund or maintain any Eurodollar
Advance, then Lender’s obligation to make, fund or maintain such Eurodollar Advance
shall terminate and such Eurodollar Advance shall be converted to a Prime Rate Advance
on the earlier of (a) the last day of the Interest Period applicable thereto, or (b)
the date the making, funding or maintaining of such Advance becomes unlawful.
Borrower agrees to provide to Lender (a) within sixty (60) days after the end of each of
the first three quarter periods of each of Borrower’s fiscal years, Borrower’s balance
sheet and accounts receivable aging report as of the end of that period and its
cash-flow statement and profit and loss statement for that period, all prepared on a
consolidated and consolidating basis and certified by a financial officer of Borrower;
(b) within one hundred twenty (120) days after the end of each of Borrower’s fiscal
years, a complete annual audit report of Borrower for that year prepared on a
consolidated and consolidating basis and certified by an independent public accountant
reasonably satisfactory to Lender; and (c) within twenty (20) days of Lender’s written
request, such other information about the financial condition, properties and operations
of Borrower as Lender may from time to time reasonably request. All statements delivered
pursuant to this paragraph shall be prepared in accordance with GAAP (using the accrual
basis of accounting) and shall be in form and detail reasonably satisfactory to Lender.
Borrower shall be deemed to be in compliance with its delivery obligations pursuant to
subparts (a) and (b) above
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to the extent Borrower delivers to Lender a copy of its 10-Q or 10-K report for the
relevant period, promptly after it is filed with the Securities and Exchange
Commission (but no later than the time periods specified in subparts (a) and (b)
above).
Borrower shall use the Line of Credit for short-term working capital purposes. This
Note and the other Obligations shall be secured pursuant to the Security Documents.
Until payment in full of the Obligations, Borrower shall maintain its primary treasury
management, banking and depository relationship with Lender.
On the date of execution of this Note, Borrower shall pay to Lender an origination fee
in the amount of Three Thousand Dollars ($3,000). Borrower agrees to pay on demand all
reasonable costs and expenses of Lender, including, but not limited to, reasonable
attorneys’ fees and expenses, in connection with the preparation, negotiation and
closing of this Note, the Security Documents and the Line of Credit and the collection
of the Obligations.
Borrower agrees to defend, indemnify and hold harmless Lender (and its affiliates,
officers, directors, attorneys, agents and employees) from and against any and all
liabilities, damages, penalties, actions, judgments, suits, costs or expenses
(including reasonable attorneys’ fees) that may be imposed on, incurred by or asserted
against Lender in connection with any investigative, administrative or judicial
proceeding (whether or not Lender shall be designated a party thereto) or any other
claim by any Person relating to or arising out of this Note or the Line of Credit;
provided that Lender shall not have the right to be indemnified under this paragraph as
a result of Lender’s gross negligence or willful misconduct.
Upon the occurrence of an Event of Default and at all times thereafter, at the option
of Lender (but automatically with respect to Events of Default (e) through (h)), all
Obligations shall become immediately due and payable, Lender may terminate the Line of
Credit and no further Advance may be requested by Borrower. In addition, Lender may
apply or setoff any Deposit Account against all Obligations, all without any notice to
or demand upon Borrower, in addition to any other rights and remedies Lender may have
pursuant to law or equity, this Note, the Security Documents or any other instruments
or agreements, which rights and remedies shall be cumulative.
This Note shall bind Borrower and Borrower’s successors and assigns and shall inure to
the benefit of Lender and Lender’s successors and assigns. Borrower may not assign or
otherwise transfer any of its rights under this Note without the express written
consent of Lender. All provisions hereof shall be subject to, governed by, and
construed in accordance with Ohio law, without regard to principles of conflicts of
laws. Unenforceability of any provision hereof or any application of any provision
hereof shall not affect the enforceability or application of any other provision. This
Note constitutes a final written expression of all of the terms of this instrument, is
a complete and exclusive statement of those terms and supersedes all oral
representations, negotiations and prior writings, if any, with respect to the subject
matter hereof. The relationship between Borrower and Lender with respect to this Note
is and shall be solely that of debtor and creditor, respectively, and Lender shall have
no fiduciary obligation toward Borrower with respect to this Note or the transactions
contemplated hereby. Any amendment or waiver hereof or any waiver of any right or
remedy otherwise available must be in writing and signed by the
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party against whom enforcement of the amendment or waiver is sought. This Note may be
executed by facsimile signature, and when so executed, the facsimile copy shall be
effective as an original.
For the purposes of this Note, the following terms shall have the following meanings:
“Advances” means, collectively, all loan advances made by Lender to Borrower, at
the sole discretion and option of Lender, Borrower acknowledging that the Line of
Credit relating to this Note is purely discretionary and Lender may, without prior
notice to Borrower, refuse to honor any request by Borrower for borrowing hereunder;
“Advance” means any of the Advances.
“Business Day” means (a) if the applicable Business Day relates to a Prime Rate
Advance, any day that is not a Saturday, Sunday or other day on which national banks
are authorized or required to close in Cleveland, Ohio, or (b) if the applicable
Business Day relates to a Eurodollar Advance, a day of the year on which dealings are
carried on in the London interbank eurodollar market.
“Default Rate” means that floating rate per annum equal to two percent (2%) in
excess of the Prime Rate from time to time in effect, which rate shall be immediately
adjusted to correspond with each change in the Prime Rate.
“Deposit Account” means any demand, time, statement, savings, passbook or similar
account or balance (including, without limitation, any certificate of deposit)
presently or at any time hereafter maintained with Lender at any of its foreign or
domestic offices either by Borrower or by Borrower with one or more others in a
several, joint or joint and several capacity.
“Dollar” or the sign $ means lawful money of the United States of America.
“Eurocurrency Liabilities” shall have the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
“Eurodollar Advance” means an Advance that bears interest determined with
reference to the Eurodollar Rate.
“Eurodollar Rate” means, with respect to a Eurodollar Advance, for any Interest
Period, a rate per annum equal to the quotient obtained (rounded upwards, if necessary,
to the nearest 1/16th of 1%) by dividing (a) the rate of interest, determined
by Lender in accordance with its usual procedures (which determination shall be
conclusive absent manifest error) as of approximately 11:00 A.M. (London time) two
Business Days prior to the beginning of such Interest Period pertaining to such
Eurodollar Advance, as listed on British Bankers Association Interest Rate LIBOR 01 or
02 as provided by Reuters (or, if for any reason such rate is unavailable from Reuters,
from any other similar company or service that provides rate quotations comparable to
those currently provided by Reuters) as the rate in the London interbank market for
Dollar deposits in immediately available funds with a maturity comparable to such
Interest Period, provided that, in the event that such rate quotation is not available
for any
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reason, then the Eurodollar Rate shall be the average (rounded upward to the nearest
1/16th of 1%) of the per annum rates at which deposits in immediately available funds
in Dollars for the relevant Interest Period and in the amount of the Eurodollar Advance
to be disbursed or to remain outstanding during such Interest Period, as the case may
be, are offered to Lender (or an affiliate of Lender, in Lender’s discretion) by prime
banks in any Eurodollar market reasonably selected by Lender, determined as of 11:00
A.M. (London time) (or as soon thereafter as practicable), two Business Days prior to
the beginning of the relevant Interest Period pertaining to such Eurodollar Advance
hereunder; by (b) 1.00 minus the Reserve Percentage.
“Event of Default” means the occurrence of any of the following events: (a) the
failure of Borrower to pay any principal or interest hereunder or perform any
Obligation when it becomes due and payable and such failure continues for three
Business Days; (b) Lender shall determine that any statement, representation or
certification contained in any financial statement, loan request or other document
given by Borrower to Lender in connection with this Note, the Line of Credit or any
Advance shall be untrue or incorrect in any material respect; (c) any condition or
event that Lender determines has or is reasonably likely to have a material adverse
effect on the business, prospects, operations or financial condition of Borrower, or on
the rights and remedies of Lender under this Note or under the Security Documents, or
on the ability of Borrower to perform its obligations hereunder or under the Security
Documents; (d) breach by Borrower of any provision, agreement, representation, warranty
or covenant set forth in this Note or any of the Security Documents, or in any other
instrument, document or agreement evidencing or relating to any Obligation and such
failure shall continue for fifteen (15) days after notice thereof from Lender to
Borrower; (e) dissolution, termination of existence, insolvency, business failure or
appointment of a receiver of Borrower or any part of the property of Borrower; (f)
assignment for the benefit of creditors by Borrower; (g) failure or inability of
Borrower to pay its debts as they come due; (h) the commencement of any proceedings
under any bankruptcy or insolvency laws by or against Borrower; or (i) any judgment,
attachment, execution, or similar process in excess of One Hundred Thousand Dollars
($100,000) is rendered, issued, or levied against Borrower or any material amount of
its property and is not fully satisfied, released, vacated, or bonded within thirty
(30) days after its rendering, issue or levy.
“Facility Termination Date” means April 30, 2007 (unless demand is made earlier).
“GAAP”
shall mean generally accepted accounting principles in the United States as
then in effect, which shall include the official interpretations thereof by the
Financial Accounting Standards Board, applied on a basis consistent with the past
accounting practices and procedures
of Borrower.
“Interest Period” means, with respect to any Eurodollar Advance, the period
commencing on the date such Advance is made and ending on the last day of such period
as selected by Borrower pursuant to the provisions hereof and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period
and ending on the last day of such period as selected by Borrower pursuant to the
provisions hereof. The duration of each Interest Period for any Eurodollar Advance
shall be one month. Borrower shall not request that Eurodollar Advances be outstanding
for more than three different Interest Periods at any time.
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“Interest Rate” means (a) as to any Prime Rate Advance, that rate per annum equal
to the Prime Rate from time to time in effect, minus one hundred (100) basis points;
and (b) as to any Eurodollar Advance, that rate per annum equal to the Eurodollar Rate
from time to time in effect, plus one hundred twenty-five (125) basis points.
“Line of Credit” means the uncommitted line of credit established by Lender for
Borrower, pursuant to which Borrower may request such Advances as Lender may be willing
to grant, up to the Maximum Amount, as such Line of Credit may be from time to time
modified, replaced or renewed.
“Maximum Amount” means Two Million Dollars ($2,000,000).
“Note” means this Demand Master Promissory Note.
“Obligation” means any present or future obligation, indebtedness or liability of
Borrower owed to Lender, of whatever kind and however evidenced, together with all
extensions, renewals, amendments, restatements and substitutions thereof or therefor
(including, without limitation, each payment of principal or interest on each Advance
or any fee or other amount payable under this Note or pursuant to the Line of Credit or
the Security Documents).
“Person” means an individual, sole proprietorship, partnership, joint venture,
unincorporated organization, corporation, limited liability company, institution,
trust, estate, government or other political subdivision thereof or any other entity.
“Prime Rate” means that interest rate established from time to time by Lender as
Lender’s Prime Rate, whether or not such rate is publicly announced; the Prime Rate may
not be the lowest interest rate charged by Lender for commercial or other extensions of
credit. Each change in the Prime Rate shall be effective immediately from and after
such change.
“Prime Rate Advance” means an Advance that bears interest determined with
reference to the Prime Rate.
“Reserve Percentage” means for any day that percentage (expressed as a decimal)
that is in effect on such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve requirement
(including, without limitation, all basic, supplemental, marginal and other reserves
and taking into account any transitional adjustments or other scheduled changes in
reserve requirements) for a member bank of the Federal Reserve System in Cleveland,
Ohio, in respect of Eurocurrency Liabilities. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve Percentage.
“Security Documents” means the Security Agreement executed in connection herewith,
the Uniform Commercial Code financing statements filed in connection therewith, and any
other document pursuant to which a security interest or lien is granted to Lender as
security for the Obligations.
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Borrower authorizes any attorney at law at any time or times after the maturity
hereof (whether maturity occurs by lapse of time or by acceleration) to appear in any
state or federal court of record in the United States of America, to waive the issuance
and service of process, to admit the maturity of this Note and the nonpayment thereof
when due, to confess judgment against Borrower in favor of the holder of this Note for
the amount then appearing due, together with interest and costs of suit, and thereupon
to release all errors and to waive all rights of appeal and stay of execution. The
foregoing warrant of attorney shall survive any judgment, and if any judgment is
vacated for any reason, the holder hereof nevertheless may thereafter use the foregoing
warrant of attorney to obtain an additional judgment or judgments against Borrower.
Borrower agrees that Lender’s attorney may confess judgment pursuant to the foregoing
warrant of attorney. Borrower further agrees that the attorney confessing judgment
pursuant to the foregoing warrant of attorney may receive a legal fee or other
compensation from Lender.
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| Address: | 0000 Xxxxxxxx Xxxxxxxxx | DATATRAK INTERNATIONAL, INC. | ||||||
| Xxxxxxxx Xxxxxxx, XX 00000 | ||||||||
| By: | /s/ Xxxxx X. Black | |||||||
| Attention: | Xxxxx X. Black | Name: | Xxxxx X. Black | |||||
| Title: | V.P. — CFO | |||||||
“WARNING — BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST
YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.”
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